Tuesday, 25 October 2016

Fundamental dishonesty

It is said increasingly that we are living in a post-truth age, particularly with reference to modern politics.  Fairness and fact are usurped by false rumour and appeals to emotions.

Many solicitors dealing with personal injury claims will tell you that the insurance industry is a far from shining example of this murky culture.  We say you can’t trust them.

They have convinced recent past governments, and much of the population, that injured people pursuing claims for compensation are largely if not entirely fraudsters and that these claims, and the costs associated with them, are responsible for relentless rises in motor insurance costs.

The headline claims are untrue.  This has more to do with the impact on profits and capital reserves of depressed interest rates over a long period of time.  See Smokescreen for more on this.

Recently we’ve had yet further headlines about the rising cost of policy premia, the average expected to hit £700, despite all the so called curbs on costs that the industry duped a supine government to implement.  Still insurers insist that whiplash isn’t real and inflate their statistics for “fraud” by the inclusion of routinely abandoned claims. 

The more audacious the yarn, the bigger the impact – see Make the lie big.  It all seems to be one way traffic.  No wonder.  The Association of British Insurers (“ABI”) is a well organised and vocal body representing huge and powerful corporations.  It goes without saying they are well funded – with our money.  We pay them to mislead us - and then pay them more.

We are hearing now about the reported successes of insurers in defeating claims for what is known as fundamental dishonesty.  This was another deterrent introduced a little over three years ago whereby the penalties for false claims and exaggeration were increased substantially.

It’s quite right of course that people who pursue fraudulent claims should face the consequences but the latest rules have created a climate where ordinary decent people pursuing genuine claims for compensation to which they are entitled as a matter of law are terrified of the risks.

Leading defendant law firms now boast about the number of cases they have seen off by alleging fundamental dishonesty and we know that a large section of the population would not now be inclined to pursue a claim following an accident because of the stigma and fears of this so called “compensation culture”.

Insurers portray themselves as the white knights on the battlefield, protecting the premium-paying public from these abuses.  They tell the world that it would be fine to change the rules so that all these expensive claimant lawyers will drop out of the equation.  Genuine victims, they say, have nothing to fear and can trust insurers to deal fairly with them and seek that they receive that to which they are entitled by law.

Believe that?

If so, you may want to do something about those long, furry ears.

For an example of how fair and virtuous liability insurers can be, see the report that we posted on our website earlier this month in the case of McLachlan v South Somerset District Council.  It’s a heart-warming tale of justice being done, despite the skulduggery of the Dark Side. 

The success or failure of public liability claims often depends on whether or not there have been similar accidents in the past which alerted the defendant to a need for action.  You will see in the website report one of the highlights of the trial which was the judge’s question “How many people have to injure themselves before you realise there is a design issue?”

So, you don’t have to be any sort of expert in this field to understand that if the knowledge and existence of previous and similar claims can be suppressed and concealed, it’s going to be far more difficult for the claimant to succeed.

In this case, the District Council’s insurers lied to us repeatedly about the history of this car park.  They did so in correspondence, in answer to pointed questions and despite at one stage information from us that we already knew of at least one claim.

We were told in a letter of 28 June 2014 from insurers that:

        “All other users of the car park negotiated the area without incident”.

We asked them:-
“Are you referring to a particular space in time and group of users or the world at large at any time during which the kerbs have been in place?”.
Claims handler Charlotte wrote to tell us on 18 July 2014:-
“We can confirm that we are saying there were no other incidents prior to your client’s accident”.
We were at that stage already on to the fact that the “walking wounded” often limped to the nearest source of assistance, the Octagon Theatre – see the headline to the report. 

Ironically, the defendant council as owner and control of the Theatre where – according to the manager who gave evidence at the trial – so many victims reported, produced no records of any such matters during the course of the proceedings. False disclosure statements, anyone?

We made that point to them in a letter dated 6 February 2015.  We were subsequently told, again, on 1 July 2015:-
“We note your comments, we can confirm that our insured are not aware of any other similar incidents or complaints in relation to this matter”.
In fact there had been at least eight prior incidents. The complaint by one victim, who was injured approximately five years before our client fell, was presented by then Somerset County Councillor Cathy Bakewell MBE.  In answer to correspondence from the Head of Engineering and Property at the District Council, she wrote:-
“Might the council consider highlighting the edges of the kerbs in order to make them stand out more, especially in the evening? Whilst there is lighting in the car park, it does not illuminate the kerbs. Might it be possible for the council to consider some additional lighting to assist pedestrians to avoid tripping over the kerbs?”
The trial judge said, “It is difficult to think of a starker picture and I find it mind-boggling that the defendant did nothing”.

But the key point of this piece is to highlight the seemingly fearless – yet at times inept – attempt to conceal the truth, with deliberate false statements about the history of the matter that was crucial to success or failure of a meritorious claim.

Injury claimants who tell lies in support of their fraudulent claims face the real prospect of going to prison.

Solicitors who connive at such claims face the risk of being struck-off, losing their livelihood and perhaps joining their clients behind bars.

What happens to insurance companies and their employees who tell lies in support of their case?

Nothing.  They can pick up the next file and do it all over again.


Friday, 21 October 2016

In ruins

I could weep as I read the latest direct evidence of how the Ministry of Injustice has smashed up our civil justice system. I fear we’re close to the end of that Road to ruin I wrote about 18 months ago.

Latest example comes in a case where we are acting for a creditor whose debt was to be paid, by agreement and consequent approval of the court, through a scheme of monthly instalments backed up with a series of adjournments.

It worked well for a couple of months but then fell victim to the state of affairs at our local court where it seems that the minimum period of time now to process routine paperwork, including formal orders, is 5 to 6 weeks.  In the last few months the scheme of adjournments has fallen off the rails, with the most recent being more than two months.  It’s no surprise the payments have dried up and we are now trying to get it back on course.

No answer to correspondence so one of my team telephones the court yesterday morning.  She speaks to somebody who is new to her role and doesn’t yet have access to the email system – so she can’t even tell us if our communication has been received never mind dealt with.

Asked if there was somebody else that we could speak to who might be able to help us, the answer is that they are “incredibly short staffed” – so, no.

We could send another email marked “urgent” to bring this up through the backlog in correspondence but there is no guarantee because of course our call handler has no idea what’s on the system. Would we have more luck calling tomorrow when somebody with access might be available?  Well, we are welcome to try but there is no guarantee… 

The last telephone case management conference I dealt with in the same court, a few weeks ago, was a farce because British Telecom couldn’t get anybody to answer the phone for half an hour.  I made small talk to the litigant in person on the other side whilst the judge sat at his desk doing box work and wondering why the telephone didn’t ring.

He did his best with only 15 minutes of a 45 minute case conference left.  Hopefully next time (if the court is still there) we shall be given a direct dial number for the usher instead of waiting for somebody to man the switchboard that also handles all business for the criminal and family courts.

In two other recent instances final hearings have been postponed because there was no judge available.

This used to be such a reliable and effective court.  We had very capable and helpful district judges - still do - supported by an administrative team who always had too much to do but got it done.  We used to complain when they told us that they were three weeks behind but they would find some more resource and bring it up to date.

Things happened then.

I talked at the end of last year to one of the people responsible for that culture – somebody whom you could always depend on when it was necessary – a real “leave it to me” (and it will get sorted) type.
 
I listened then to how the 5-week-old pile of post would come out of the cupboard each day and, after all the more immediate and urgent stuff had been dealt with, go back in the cupboard at the end of the day – the only change being that the pile was a little higher. 

I saw the look of desolation in the once-bright eyes and understood the anxiety to retire and escape at the first opportunity. 

The good people have gone, or are going.  To the extent (partial) of their being replaced then it’s with young recruits who lack experience, knowledge and training. Not their fault but they don’t have it.

In response to the last provisional assessment request we filed came a notice that the “detailed assessment hearing” had been listed on a date when we should attend and “2 minutes 30 minutes (sic) has been allowed for the hearing”. 

We pointed out the error and in response received “notice that the provisional assessment hearing will take place…” and in this instance 1 hour and 15 minutes had been allowed. Another letter to the court drew the assurance that no attendance at the hearing was necessary.  The next order enclosed the bill provisionally assessed by the district judge in the absence of the parties.

Since then and approximately a month later, we have had another ‘order’.

“IT IS ORDERED THAT this case is on the list today.  However the bill has already been provisionally assessed…”

Magnificent.  

I am waiting for an “order” one day “that I will be on holiday four weeks from today so list that for when I get back – and I am just going out to get a sandwich now”.

This is “justice” at work nowadays.  This is what people pay us to grapple with to obtain orders that are a civilised society’s alternative to self-help and anarchy.

Meanwhile we have people in Salford who can’t process anything in less than a fortnight hunting for minor arithmetical miscalculations or errors of procedure (that aren’t) and then having to refer files to district judges whilst we wait weeks for news of something happening. 

In one case where “proper officer” and district judge were both doing different conflicting things on the file on the same day we ended up with a proper procedural mess which cost The Court Service more than £3,000 in wasted costs (and that was just our side).

I can’t wait for Lord Briggs’ wonderful online courts, monitored by people who don’t have access to the system and available to people who know nothing of law and procedure. 

That should cure all..


Sunday, 9 October 2016

Sick

Stephen Adams’ ugly polemic in the Mail on Sunday seems to be branding all lawyers – certainly those involved in the business of suing the NHS for compensation for victims of clinical negligence - vultures. What a sweet guy.

He rants about the amounts paid in costs during the last year in relation to damages claims (excluding costs) that have trebled from £323 million to around £950 million over the last decade.

All the rhetoric aside this is fairly simple. Compensation is only paid in cases where a court decides that the NHS has been negligent and so the claimant is entitled, according to the law, to compensation or the NHS accepts that is the likely outcome and settles before trial.

So – the first fact to get on board is that all of these expenses arise because of proven or admitted blunders for which the law says the innocent victim should be compensated.

In other words – and this is the real point of concern – cock-ups are increasing at a frightening rate. No wonder where the service is so under-funded and demoralised. No consolation there for the victims of that growing number of mistakes who, our law says, should be compensated in the only way possible – by the provision of funds to alleviate their suffering.

And as for costs – guess what? Yes, they are only payable in successful cases so all the outrage is about the expense of suing the NHS to pay damages they are liable to pay for getting it wrong.

Forget the hardworking individuals in this scenario. I admire them too. This is not about caning well-meaning folk who are doing their best. It’s about recognising that because these lovely, caring people are overworked and under-resourced, other innocent citizens are being failed and in some cases very badly injured or worse.

Let’s be grown up and accept that if you mess up, you need to make amends. By the way, an apology is a cracking good start.

I expect that many sane people see that but may ask, “Yes, but what about the amount of the costs?” 

Good question.

First, there are many cases where there is no justifiable complaint about the costs incurred by the claimant’s solicitors. Remember that those sums – however much they are – form part of the total costs paid alongside damages in claims which are proven or admitted to have merit.

Secondly, there are too many cases where the people tasked with fighting these claims on behalf of the NHS lose all objectivity and pragmatism – fighting for the sake of it, where sensibly they should be conceding the claims and working with victims’ lawyers to make sure the right amount of compensation is paid.

But they don’t. As the MoS article briefly mentions, it’s a “culture of defend, deny and delay”.

So, this pushes the costs up – inevitably. There’s a good claim. Victim’s lawyers know it. What do they do? Say, “Oh, the NHS are digging in – we’ll have to give up”? Of course not.

See Kerry Underwood’s analysis earlier this year which contains links to cases where the NHSLA has been fiercely criticised by judges for its attritional approach.

At this point it’s worth repeating the unarguable message that the answer to this problem comes, to a large extent, in two simple parts:

1.       Don’t screw up (please)
2.       If you do, ‘fess up – promptly

Finally, yes there are cases where the fees claimed – even though the case succeeded – are too high. In some cases there is a genuine disagreement about what is reasonable. In others, disreputable lawyers – a minority - are claiming too much.

The easy answer is always that the court controls, by a formal process of detailed assessment the amount payable. If the NHSLA thinks the bill is too high, then it simply forces the matter before the court and if it makes sensible offer of payment along the way, it can expect to recover its costs of fighting the assessment.

Problem? There isn’t one – except the culture of cock-up, cover up and clam up.

Remember – every single payout is the product of a proven or admitted mistake.

The NHS, NHSLA and parts of the media are all sick in various ways. Lawyers fighting fairly for justice are sick of two of them.

As for Stephen Adams, he’s succumbed to the temptation for personal gain to tar all lawyers with the same brush. All generalisations are dangerous…

It would be like reading the Mail and concluding that all newspapers are full of rubbish.